(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued May 1, 2007 -- Reargued September 10 , 2007 -- Decided October 25, 2007
PER CURIAM
The issue in this appeal is whether the Persistent Offender Accountability Act, N.J.S.A. 2C:43-7.1 (the “Three Strikes Law”), as amended in 2003, applies to this defendant, who had two prior convictions, but who did not commit the predicate offenses prior to the subject offense.
On December 13, 1999, defendant Howard Parks committed first-degree armed robbery at a Union County hotel. He was convicted on October 5, 2001. At that time, he had two prior convictions of separate and unrelated offenses. On January 17, 2001, he was convicted in Essex County of kidnapping and first-degree robbery. He committed those crimes on December 1, 1999. On December 1, 2000, he was convicted of federal bank robbery, which occurred on December 28, 1999.
In January 2002, at sentencing on the Union County conviction, the State sought
an enhancement under the Three Strikes Law on the basis that defendant had
three “strikes.” At the time, the Three Strikes Law required that a court
impose a term of life imprisonment, without the possibility of parole, on a
defendant convicted of certain types of first-degree crimes (including robbery), where the defendant
had previously been convicted, on two separate occasions, of those crimes in this
state, another state, or under federal law. The trial court applied the Three
Strikes Law and sentenced defendant to life in prison without parole. Defendant appealed.
While that appeal was pending, the Legislature amended the Three Strikes Law in
April 2003. The Three Strikes Law now requires a term of life without
parole when the defendant “has been convicted of two or more crimes that
were committed on prior and separate occasions, regardless of the dates of the
convictions.”
On November 24, 2003, the Appellate Division affirmed defendant’s conviction, but reversed and
remanded the sentence to the trial court to determine whether the prior federal
bank robbery was a “strike” within the meaning of the Three Strikes Law.
On resentencing in April 2004, the trial court decided that defendant’s prior federal
conviction was a “strike” and imposed a life sentence without parole. The trial
court did not indicate whether it was applying the original or the amended
version of the Three Strikes Law.
The Appellate Division affirmed the sentence on May 18, 2006. The Supreme Court
granted certification.
188 N.J. 355 (2006). At oral argument on May 1, 2007,
the issue of the applicability of the amended Three Strikes Law arose, leading
to supplemental briefing and further oral argument.
HELD: The amended Three Strikes Law applies to defendant’s sentencing. Because defendant “committed”
only one predicate offense prior to the subject offense, he did not qualify
for enhanced sentencing under the Three Strikes Law.
1. The 2003 amendment to the Three Strikes Law was enacted in direct
response to the decision in State v. Livingston,
172 N.J. 209 (2002), in
which the Court held that enhanced sentencing required two prior convictions that were
entered on separate occasions. The amendment clarifies that the dates of the two
prior convictions are irrelevant; the sentence must be enhanced when the two prior
crimes were committed on separate occasions. There is no dispute that if the
amended statute applies, defendant was not subject to enhanced sentencing because the sequence
of his crimes does not satisfy the statute. Defendant committed the Essex County
robbery and kidnapping on December 1, 1999; the Union County robbery (the subject
offense) on December 13, 1999; and the federal bank robbery on December 28,
1999. (pp. 5-8).
2. The original version of the Three Strikes Law was in effect when
defendant was first sentenced in January 2002. However, when he was sentenced anew
in 2004, the prior sentencing was nullified. At that time, the amended Three
Strikes Law had been in effect for a year. The amended statute applies
to defendant’s sentencing. Because defendant’s prior crimes do not satisfy the amendment’s requirements,
he was not subject to Three Strikes enhancement.
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the trial court for re-sentencing in accordance with the Court’s opinion.
JUSTICES LONG, LaVECCHIA , ALBIN , WALLACE , RIVERA-SOTO and HOENS join in this opinion. CHIEF
JUSTICE RABNER did not participate.
SUPREME COURT OF NEW JERSEY
A-
39 September Term 2006
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOWARD PARKS,
Defendant-Appellant.
Argued May 1, 2007 -- Re-argued September 10, 2007 – Decided October 25, 2007
On certification to the Superior Court, Appellate Division.
Eric Tunis argued the cause for appellant (Edwards Angell Palmer & Dodge, attorneys;
Mr. Tunis and Mark D. Debrowski, on the briefs).
Carol M. Henderson, Assistant Attorney General, argued the cause for respondent (Anne Milgram,
Attorney General of New Jersey, attorney).
Jeffrey S. Mandel argued the cause for amicus curiae, Association of Criminal Defense
Lawyers of New Jersey (Day Pitney, attorneys).
PER CURIAM
This appeal involves the applicability of the Persistent Offender Accountability Act, N.J.S.A. 2C:43-7.1
(the “Three Strikes Law”). It centers on a defendant who was resentenced after
an amendment to the Three Strikes Law that declared that its applicability depends
on the commission of two or more crimes prior to the crime for
which the enhanced sentence is sought and not on the sequence of the
prior convictions. Although the defendant in this case had two prior convictions, he
did not commit the two predicate crimes prior to the offense at issue
here. Thus, the statute is inapplicable to him. We therefore reverse the Appellate
Division decision to the contrary and remand the case to the trial judge
for a new sentencing under the amended Three Strikes Law.
I
On December 13, 1999, defendant Howard Parks entered a Hilton Hotel in Union
County armed with a weapon and took money from the cash drawers. As
a result, on October 5, 2001, he was convicted of first-degree armed robbery,
contrary to N.J.S.A. 2C:15-1. As of that date, defendant had been convicted on
two prior occasions for separate and unrelated offenses, an Essex County kidnapping and
robbery and a federal bank robbery. The Essex County crimes took place on
December 1, 1999, with convictions on January 17, 2001. The federal crime occurred
on December 28, 1999, with a conviction on December 1, 2000. Accordingly, at
sentencing on January 18, 2002, the State moved for the imposition of an
enhanced sentence under the Three Strikes Law on the basis that defendant had
three predicate convictions, or “strikes.” At that time the Three Strikes Law read
as follows:
a. Life Imprisonment Without Parole. A person convicted of a crime under any
of the following: N.J.S. 2C:11-3; subsection a. of N.J.S. 2C:11-4; a crime of
the first degree under N.J.S. 2C:13-1, paragraphs (3) through (6) of subsection a.
of N.J.S. 2C:14-2; N.J.S. 2C:15-1; or section 1 of P.L.1993, c. 221 (c.
2C:15-2), who has on two or more prior and separate occasions been convicted
of a crime under any of the foregoing sections or under any similar
statute of the United States, this state, or any other state for a
crime that is substantially equivalent to a crime under any of the foregoing
sections, shall be sentenced to a term of life imprisonment by the court,
with no eligibility for parole.
[N.J.S.A. 2C:43-7.1 (1995) (emphasis added), amended by N.J.S.A. 2C:43-7.1 (2003).]
The judge applied the Three Strikes Law, and imposed the statutorily mandated term
of life in prison without the possibility of parole.
Defendant appealed. On April 23, 2003, while defendant’s appeal was pending, the Legislature
amended the Three Strikes Law. L. 2003, c. 48, § 1. It now reads:
a. Life Imprisonment Without Parole. A person convicted of a crime under any
of the following: N.J.S.2C:11-3; subsection a. of N.J.S.2C:11-4; a crime of the first
degree under N.J.S.2C:13-1, paragraphs (3) through (6) of subsection a. of N.J.S.2C:14-2; N.J.S.2C:15-1;
or section 1 of P.L.1993, c. 221 (C.2C:15-2), who has been convicted of
two or more crimes that were committed on prior and separate occasions, regardless
of the dates of the convictions, under any of the foregoing sections or
under any similar statute of the United States, this State, or any other
state for a crime that is substantially equivalent to a crime under any
of the foregoing sections, shall be sentenced to a term of life imprisonment
by the court, with no eligibility for parole.
[N.J.S.A. 2C:43-7.1 (emphasis added).]
On November 24, 2003, the Appellate Division affirmed defendant’s conviction, but reversed and
remanded his sentence because the trial judge had failed to make the required
determination that defendant’s prior federal bank robbery conviction constituted a “strike” within the
meaning of the Three Strikes Law. On resentencing, in a written opinion dated
April 29, 2004, the trial judge decided that defendant’s federal conviction was a
“strike” for purposes of the statute, and imposed the mandatory sentence of life
without parole. Notably, the judge did not indicate whether he applied the original
or the amended version of the Three Strikes Law. On May 18, 2006,
the Appellate Division affirmed. We granted certification.
See footnote 1
State v. Parks,
188 N.J. 355
(2006).
II
The Three Strikes Law was enacted as “part of a nationwide trend aimed
at protecting the public by incarcerating certain third-time offenders for life.” State v.
Livingston,
172 N.J. 209, 218 (2002) (citing State v. Oliver,
162 N.J. 580,
583-84 (2000)). In its original form, the law counted as “strikes” two or
more “convictions” entered on prior and separate occasions.
In 2002, this Court decided State v. Livingston,
172 N.J. 209 (2002). There,
we were confronted with the question of whether the Three Strikes Law applied
to “a third-time offender who previously entered two separate guilty pleas for two
separate crimes at one plea proceeding and was sentenced for those separate crimes
in one sentencing proceeding.” Id. at 212. In other words, did defendant’s two
prior contemporaneous convictions occur on “separate occasions,” as the 1995 Three Strikes Law
required. Ibid. We held that defendant’s simultaneous convictions were not entered on “separate
occasions,” and therefore that he was not subject to enhanced sentencing under the
Three Strikes Law. Id. at 222.
In a concurrence, Justice Stein opined that the Court’s construction of the Three
Strikes Law was not consistent with the Legislature’s intent, and invited the Legislature
to amend the statute if it preferred a different result. Id. at 225-27
(Stein, J., concurring).
On April 23, 2003, in direct response to our decision in Livingston, the
Legislature amended the Three Strikes Law to provide that it would apply where
a defendant was convicted of two or more offenses “that were committed on
prior and separate occasions, regardless of the date of the convictions.” L. 2003,
c. 48, § 1.
The amendment was introduced in June 2002, with this statement from its sponsor:
Under the “Three Strikes” law, N.J.S.A. 2C:43-7.1, defendants convicted of certain first degree
crimes who have previously been convicted, on two separate occasions, of those crimes
must be sentenced to life imprisonment without eligibility for parole. . . .
The crimes are murder, aggravated manslaughter, kidnapping in the first degree, certain aggravated
sexual assaults, robbery in the first degree, and carjacking.
In State v. Livingston, . . . the New Jersey Supreme Court ruled
that a defendant being sentenced in 1999 for carjacking and other crimes who
had two previous convictions for robbery would not be eligible for sentencing under
the Three Strikes law due to the rather unusual timing of those prior
convictions. The defendant had committed one robbery in 1983 and one in 1985,
but pleaded guilty to both robberies on the same day in 1985. Because
both convictions occurred on the same day, the court held that the statute
was not applicable, since the statute literally applies only to those defendants who
were convicted “on two or more prior and separate occasions.”
The sponsor believes that this interpretation of the statute was never intended by
the Legislature. In response to the court’s decision, this bill amends the Three
Strikes law to clarify that it applies to defendants convicted of three crimes
which were committed on separate occasions; the dates of the defendant’s convictions are
irrelevant.
[Statement by Sen. Diane Allen to Senate Bill No. 1733 (June 30, 2002).]
In its approval of the amendment, the Assembly Judiciary Committee echoed the sponsor’s
statement: “In response to [State v. Livingston], this bill amends the ‘Three Strikes’
law to clarify that the Legislature intended that the law applies to a
defendant convicted of an enumerated crime who has been convicted of two or
more of those crimes that were committed on prior and separate occasions, regardless
of the dates of the convictions.” Assembly Judiciary Committee Statement to Senate Bill
No. 1733 (Jan. 16, 2003).
There is no dispute between the parties over the meaning of the amended
act. They agree that it was intended to palliate the effects of Livingston
and clarify the Legislature’s intention to require the commission of two or more
crimes “on prior and separate occasions” regardless of the sequence of convictions. They
also agree that if the amended act applies, defendant was not subject to
enhanced sentencing. We concur and conclude that the sequence of defendant’s crimes does
not satisfy the amended statute. Defendant committed the Essex County kidnapping and robbery
on December 1, 1999, the Union County robbery (subject offense) on December 13,
1999, and the federal bank robbery on December 28, 1999. Because only one
offense was “committed” by defendant prior to that for which Three Strikes sentencing
was sought, he did not qualify for enhancement under the amended statute.
III
The remaining question is whether there is any reason to apply the original
version of the Three Strikes Law. None has been demonstrated. To be sure,
when defendant was sentenced in January of 2002, the first Three Strikes Law
was in effect. However, when he was sentenced anew on April 29, 2004,
the prior sentencing was nullified. At that time, the amended law was in
effect. Thus, the parties’ briefs and arguments on questions of retroactivity and the
concomitant effect of the Savings Clause (N.J.S.A. 1:1-15) were wide of the mark.
Plainly, this case does not involve a retroactivity analysis because no penalty was
incurred prior to the amendment. Indeed, when defendant’s resentencing took place, the new
law had been in effect for a year. That said, and because defendant
does not satisfy the strictures of the amendment, he was not subject to
the Three Strikes enhancement.
IV
The judgment of the Appellate Division is reversed. The matter is remanded to
the trial judge to be sentenced anew in accordance with the principles to
which we have adverted.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in this opinion. CHIEF
JUSTICE RABNER did not participate.
SUPREME COURT OF NEW JERSEY
NO. A-39 SEPTEMBER TERM 2006
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOWARD PARKS,
Defendant-Appellant.
DECIDED October 25, 2007
Justice Long PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
The question originally presented to us was whether the “substantially equivalent” analysis engaged
in by the trial judge to determine that defendant’s federal conviction was a
“strike” violated his federal and state constitutional rights to a trial by jury.
At oral argument, the issue of the applicability of the amended Three Strikes
Law arose and supplemental briefing and argument took place. Because we have concluded
that defendant is not subject to an enhanced sentence under the amended version
of the law, the initial question presented is moot and need not be
addressed.